Libertarian Conservatives Upset At Their Fundamentalist Bedfellows

Brian Tamanaha

Mirror of Justice, a blog dedicated to Catholic Legal Theory, has a thread on whether religious conservatives were played by the Bush Administration. The explicit quid pro quo for the overwhelming electoral support evangelicals (as well as a large proportion of Catholics) provided Republicans at the last election was the appointment of judges who were against abortion and gay rights. Evangelicals were not shy about taking credit for Bush's re-election, and demanded their due reward. At a private conference in March 2005, with appearances by Bill Frist and Tom Delay, evangelical leaders discussed a plan to "work with congressional Republicans to achieve a judiciary that sides with them on abortion, same sex marriage, and other elements of their agenda."

The nomination of Miers has been interpreted by some evangelicals as a betrayal. Operation Rescue immediately announced that it would not support Miers because her anti-abortion stance was not clear (this is before it was generally known that Miers long ago expressed support for gay rights). As the New York Times reported, the Bush Administration made personal assurances to its evangelical supporters:

To persuade the right to embrace Ms. Miers's selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.

Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.

In an interview Tuesday on the televangelist Pat Robertson's "700 Club," Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930's. "So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court," Mr. Sekulow said.

Although not all religious conservatives were appeased, many appeared to be convinced enough to mute their negative reaction, at least for the time being.

But these assurances to religious conservatives in turn raised the ire of libertarian conservatives. Here are excerpts from David Bernstein's reaction on Volokh Conspiracy to the above NYT article:

(1) Is the evangelical right, who along with the rest of the conservative coalition, swore "no new Souters"...going to allow itself to be suckered by identity politics of the basest sort? (2) Shame on the White House for engaging in such identity politics. Racial identity politics is corrosive enough. Do we need to add religious identity politics to the mix? Especially for the Supreme Court? (3) Thus far, beyond the president's personal endorsement and her loyalty to him, all that supporters of Miers have been able to come up with is that she's an evangelical Christian and personally pro-life. Are conservatives, religious or not, supposed to support a nominee for a lifetime appointment on the Supreme Court solely on the basis of her personal faith?...(4) Conservatives, including religiously motivated conservatives, should be looking well-beyond Miers' views on "social issues" to her views of the Constitution....Eventually, her views on current social issues will be largely irrelevant, and her views on the Constitution will be what matters as future disputes arise.

Other libertarian conservatives have seconded Bernstein's outrage. The question I have for libertarian conservatives is this: who are you kidding?

To their credit, your religious conservative political bedfellows have been completely frank--as explicitly stated on their websites and reported time and again in the press--about the fact that they expected to be paid back in Supreme Court appointments (C.J. Roberts, by the way, did not fit the bill). And they have made quite clear that anti-abortion is far and away the most important criterion on their list (with resistance to gay rights next, followed by more religion in the public sphere).

In answer to your first question, Mr. Bernstein, evangelicals would say that they would be "suckers" only if Miers does not turn out to be the fervent anti-abortionist Justice they justly deserve. That is presicely the point behind the Mirror of Justice discussion about whether they were, indeed, suckered once again. The answers to the rest of your questions follow from that. Indeed your questions smack of the kind of condescension evangelicals complain about receiving from the liberal elite and American establishment (see article above).

The "conservative coalition" that Mr. Bernstein refers to was a mis-matched marriage of convenience that had to break up sooner or later.

Religious conservatives--we should stop using the euphemism "social conservative" to label groups that avowedly pursue a religious agenda--have all along been straightforward and principled in the pursuit of their goals.

Libertarian conservatives, in contrast, arguably have been less than principled in one crucial respect: they have not often enough spoken out against the efforts of their religious conservative allies to impose their religious views on all the rest of us through legal means (mandating the teaching of creationism--oops, "Intelligent Design"--in public school science classes, stalling sale of day after pills, and on and on). Securing the appointment of a fundamentalist Supreme Court Justice is just one piece of this agenda. If Mill's On Liberty serves as the libertarian bible, libertarian conservatives should long ago have taken umbrage at the core agenda of their religious allies to use the law (via legislation, administrative actions, and judges) to infuse the public sphere with religion.

This may be uncharitable speculation, but given this deep antagonism in underlying views, perhaps it is the case that all along libertarian conservatives have held their nose while in bed with their fundamentalists partners, willing to have them along so long as they helped deliver the votes, but not expecting that they would get very far in advancing their religious agenda. That is what many fundamentalists believe.

If it turns out that Justice Miers is a Christian fundamentalist who interprets the Constitution consistent with the will of God, fundamentalists will have gotten what they were promised, and libertarians will have gotten what they deserved. And all the rest of us will be paying the price.

Addendum: I have resisted the strong impulse to edit this post to soften its polemical thrust. There is too much nastiness in the blogosphere between political opponents, and I regret adding to it. Sorry Mr. Bernstein and other libertarian conservatives. But, as the bumper sticker says: "If you are not outraged, you are not paying attention."
Posted 4:10 PM by Brian Tamanaha [link]